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Is the contraception mandate constitutional?

Churches that preach the immorality of contraception are excused from federally imposed obligations to promote the practice. But federal law will soon require that the employees of hospitals and other charitable institutions run by such churchesnotably, the Catholic Churchhave the option of adding coverage for contraception to the health insurance offered by their employer. Whether or not the cost of such coverage is passed to insurers, the question remains, does the requirement violate the First Amendment guarantee of free exercise of religion by such churches?Let us suppose the formation of a new religious sect centered in, say, Florida. Seeking novel forms of worship, the sect, misunderstanding Exodus 32:16, elects to pray to a golden calf, made of melted jewelry donated by the faithful.

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Becjer us assuming that the government's right/duty to make laws of general applicability s absolute. Granted, it has the power to enforce any law, but that does not imply that the enforcement is constitutionl in all cases. The First Amendment is also a law, one of the most basi in the Constitution. Whe it conflicts with generla laws it would seem to me that the feds are constitutionally obliged to seek a compromise that does the elast harm to both the government and the persons covered by a conflicting part of the Constitution.The Constitution is not a mathematical deductive system that whose implications are all consistent. The lawyers could learn a lot from the mathematicians about deductive systems and how they work and don't work.

I think a reasonable comparison to the "contraceptive mandate" is the proposed referendum in California (which was stricken from the ballot) to ban male circumcision. Though some of the people who supported it were tainted by anti-Semitism, there are many people who feel that male circumcision is just as much mutilation as female circumcision, which is illegal in the United States even though it is practiced by some for cultural and religious reasons. Quite frankly, I think it is paranoid to maintain that the contraceptive mandate was devised as an instrument to weaken and divide the Catholic Church. That doesn't mean there is no issue of religious liberty involved. But clearly the recommendations that led to the mandate were based purely on concerns about the health of women individually and collectively.

As American citizens, the Catholic bishops in the United States are free to exercise their religious zealotry against artificial contraception in the public square.The Supreme Court is already scheduled to hear arguments about Obamacare.If the Catholic bishops want to bring another challenge to Obamacare that the Supreme Court would have to hear, regarding the constitutionality of the contraception mandate, they are, as American citizens, free to pursue this goal.For a long time, I have thought that the Catholic bishops are religious zealots. I do not admire their religious zealotry. So I hope that their religious zealotry against artificial contraception inspires strong opposition from people who support artificial contraception.

Arguably, however, the current mandate is more like the deliberate targeting in Hialeah than the neutral law in Smith. To make your analogy bear any real resemblance to the current situation, it would have to be the case that virtually everyone in the entire country was already selling/melting their gold except for the sect, that applying the law to the sect would make no difference to Congress's objective, and that there was therefore no purpose for the new law except to target the sect in everything but name. That's what we have with the contraception mandate. We've been assured by the administration and its supporters that almost all insurance policies already cover contraception and even that insurance companies will save money by doing so. In addition, contraceptives are universally and cheaply available, and are even handed out by thousands of government-funded clinics for free. It is safe to say that modern Western society has the most contraceptive "access" of any society in human history. All of that being the case, the only reason for issuing a mandate is precisely to target the few lone Catholic employers that have so far declined to cover contraception. This is not a neutral law at all, if one looks at it beyond a surface level.

Aspirin is even more widely available than contraceptives, yet insurance covers aspirin in all kinds of cases. I think Studebaker has it backwards. The reason there is a mandate is because the health reform law attempts to provide universal coverage -- or the closest thing Congress can get to it without trying the effective thing, a single-payer system, which would give half the country a case of the vapours.If there is going to be (nearly) universal coverage, there has to be a standard for what will be covered. Contraception went in -- the bishops hadn't fought that -- while abortion stayed out. Given current moral attitudes of the majority of Americans and given common medical practice, that conclusion made sense. Until the bishops mounted up.What they are saying now -- especially with their paragon Taco Bell owner -- is that individual employers should be able to opt out of what Congress decided everyone should have. The Taco Bell employee is left out of the decision. (I don't mind paying for something I am not going to use; I do it every time I write a check for my homeowner coverage.) The decision on who gets what rests, in the bishops' argument with Christian employers who can confidently be expected to decide what is best for their help.That being the case, the bishops have quietly abandoned their decades-long lobbying for universal health care coverage and joined the states in demanding individual (employer) decision-making, which, of course, leaves no universal standard. I mind that, but I mind more that they are jumping through logical hoops to avoid saying so.

If the Catholic bishops want to bring another challenge to Obamacare that the Supreme Court would have to hear, regarding the constitutionality of the contraception mandate, they are, as American citizens, free to pursue this goal. The Becket Fund has already started that process by bringing four cases to trial. They will have to work their way though the federal district courts and appeals courts before they can ask the Supreme Court to hear them.

Becker's article ignores the Religious Freedom Restoration Act, which applies only to actions by the federal government, not the states. It was passed by the Congress in response to the Supreme Court decision in Smith, which is the case Becker bases his article on. The RFRA provides:Government may substantially burden a persons exercise of religion only if it demonstrates that application of the burden to the person(1) is in furtherance of a compelling governmental interest; and(2) is the least restrictive means of furthering that compelling governmental interest.It was declared unconstitutional by the Supreme Court as it applied o the states but it still applies to actions of the federal government itself.

Actually, aspirin is almost never covered by insurers in the outpatient setting. The only exceptions I have seen are some state Medicaid plans which cover OTC meds. Your example proves Studebaker's point.

@Mary Russell (3/17, 1:44 pm) Good point about aspirin. Although aspirin isn't a good example, Tom Blackburn's point is a good one. Insurance (health, auto, home, etc.) is always about spreading risk. Anyone who pays for insurance is paying for expenses they most likely will not (and do not) incur. Jonathan Cohn, who covers health care for The New Republic, frames the insurance question this way: "Do we think responsibility for medical expenses should lie primarily with individuals, even if that means some wont be able to afford it? Or is it a burden we wish to spread more broadly, across society, so that everybody can get the care they need, at a price they can afford?"Then there's the question of whether contraception should be part of a basic health insurance package. Cohn points out that women using contraception for whom cheap, over-the-counter contraceptives would not be appropriate are a minority of the population. He goes on: "But thats always the story with health care and health insurance. At any one time, most people dont require expensive medical care. Only a small number of people do. Its precisely for the sake of that group the ones who face high expenses, and could face financial or medical turmoil without assistance that insurance exists.Keep in mind that, at some point or another, pretty much everybody falls into that category. Maybe youre not a woman who needs expensive birth control. You might still be a woman, or a man, who ends up with heart disease. Or allergies. Or a chronic gastro-intestinal problem. Or cancer. Insurance is there to take care of you, so why shouldnt insurance be there to take care of a woman who needs more expensive forms of contraception?"The argument that contraception is low-cost, routine, preventative care? Cohn points out that the same could be said for regular eye exams, or blood pressure checks---both of which are usually covered by insurance.The argument that pregnancy isn't a medical condition? "Pregnancy is a wonderful thing, but its also a serious medical condition that requires serious medical attention. (Those of you unfamiliar with what pregnancy entails might want to consult this page from the American Academy of Family Physicians or ask a woman who has been pregnant.)"See the whole article here: http://www.tnr.com/blog/jonathan-cohn/101784/birth-control-pill-insuranc...

I think it is paranoid to maintain that the contraceptive mandate was devised as an instrument to weaken and divide the Catholic ChurchOh, Mr. Nickol, you are smarter than that.You know that Planned Parenthood and the rest of the "reproductive rights" faction have long considered the Catholic Church to be Public Enemy Number One (as have their comrades in arms in various other countries in modern history), and that they have long pursued various efforts to undermine the Church whenever possible.This particular effort has absolutely NOTHING to do with increasing access to contraception -- those are already inexpensive and plentiful for anyone who wants them, even given out free at many places -- and this has nothing to do with increasing pecuniary benefits for employees and students -- any increased costs to insurers or employers will be passed onto the employees and students in the form of lower wages and higher tuition -- and this has everything to do with forcing Catholic institutions to be involved, to make them get their hands dirty.The Church is The Enemy. No one can seriously deny that.

"But clearly the recommendations that led to the mandate were based purely on concerns about the health of women individually and collectively."David N. --But the bishops and theier Republican cohorts simply cannot admit to themselves that Obama can be sincere about anything. He is a demon out to cause the downfull of the nation and must be exorcised from the body politic. He's really a Muslim Communist, you know, not an American at all.Sheesh. And double sigh.

Ann Olivier: As I've stated, I do not agree with the actions that the Catholic bishops have undertaken to protest against the contraception mandate. Nevertheless, I do not think that most of the Catholic bishops consider President Obama to be "a demon," as you say, or to be "a Muslim Communist," as you say, or to be "not an American at all," as you say.

Bender seems to think this BC plot was hatched when Catholic colleges and hospitals started BC coverage about a decade ago. He thinks that Obama, then 'a super powerful' Illinois state Representative who was able to reach out to the many states and got the BC mandate enforced by channeling long dead Saul Alinsky. Pray that the bishops don't adopt this idea.. 'and this has everything to do with forcing Catholic institutions to be involved, to make them get their hands dirty"...Paranoia is the most unattractive of mental illnesses..people don't rally around to help paranoids.. they flee.

Thomas,No, I don't think that they think that Obama is a Muslim Communist, but many of their cohorts do. Because of their behavior when Obamacare was being debated and now this mandate problem I can't help but think that they trust him about as far as they can throw a hog. They almost scuttled the health care bill (which they claimed to be for) because they couldn't believe that he was telling the truth when he said he would not force them to pay for abortions. (I wonder what Bart Stupak thinks of the bishops now.) Obama has already offered not one but two compromises in the mandate matter while the bishops have only expanded their almost hysterical complaints against him. I can only conclude that they are scared to death of him and what they imagine he might do to religious liberty.

Ann Olivier: The Catholic bishops are religious zealots, and, as such, they tend to get carried away with their religious zealotry. Their religious zealotry gives them a Manichaean worldview. But to spell out the obvious, the Catholic bishops are not politicians. By comparison, President Obama is a politician. Moreover, he does not appear to have a Manichaean worldview. President Obama has his hands full trying to deal with the Catholic bishops because of their religious zealotry and because he clearly does not agree with them about certain significant issues such as legalized abortion in the first trimester.

As I explained in my comment to the article itself, Smith does not apply to the mandate because of RFRA and because the deference to the government applied to the law at issue in Smith applies only to laws that are neutral and generally applicable. The exclusion of employers who have so-called grandfathered plans, small employers and others from the scope of the mandate for secular reasons means that the mandate isnt neutral and generally applicable. For more info, see the discussion of the free exercise in this recent 6th circuit case: http://www.ca6.uscourts.gov/opinions.pdf/12a0024p-06.pdf

Justice Alito, when he was a Third Circuit Judge authored an opinion that makes this same point with regard to a police department policy against beards that had an exception for medical reasons. Because of this exception, smith did not apply because the policy was not generally applicable. See the opinion here: http://caselaw.findlaw.com/us-3rd-circuit/1022700.html

A case that is even closer (regarding pharmacists who did not want to dispense the morning after pill) was recently decided in Washington State: http://www.becketfund.org/wp-content/uploads/2012/02/Stormans-Opinion-fr..., because of exceptions that we're in place for secular reasons, the refusal to grant the exception for religious reasons was deemed a violation of the First Amendment. In light of the applicable jurisprudence, I am questioning how this article can be taken seriously as an a opinion of the current law applicable to the mandate. What is Mr. Becker's background in constitutional law and religious exemptions?

My name is not important and the reasons I don't use my full name are similar to Unagideon's, but if you need to know anything about me, I am a graduate of Notre Dame law school (learned contracts from Professor Kaveny, con law from professor Charles Rice and First Amendment law from Prof. Rick Garnett). I am not the one who wrote the argument that failed to address the relevant statute (RFRA) and case law that any court would use to evaluate the HHS mandate.Mr Becker is also "a graduate of the Harvard Law School, he was formerly Assistant General Counsel of Allied-Signal Corporation engaged in corporate acquisitions and litigation, and served for 12 years as Adjunct Professor of International Commercial Law at New York University School of Law." http://www.internationallawoffice.com/Directory/Biography.aspx?g=6682dc1... Frankly the reason I asked about his background was because I was surprised commonweal could not get someone who is more of an expert on this topic to write a more comprehensive article that actually engages in the relevant legal arguments against the mandate. As a lawyer who knows a small bit about this issue and typically respects the substance of what appears in this journal, even if I often disagree, I was expecting something better from commonweal.

On Friday afternoon, 3/16, several Federal Government Departments and Agencies (including Treasure, HHS and Labor) published an "Advance notice of proposed rulemaking (ANPRM)." http://www.ofr.gov/OFRUpload/OFRData/2012-06689_Pi.pdfThis ANPRM launches a 90 day comment period for "stakeholders" and the general public. The focus is on the regulation that will define the accommodation to be given religious organizations which have religious objections to including coverage for contraception in their employee benefits plan. In addition, the ANPRM suggests several alternative ways this accommodation might be achieved for institutions which self-insure. . The Catholic Bishops now must decide whether to respond -- or to ignore.

Frankly the reason I asked about his background was because I was surprised commonweal could not get someone who is more of an expert on this topic to write a more comprehensive article that actually engages in the relevant legal arguments against the mandate.MikeD,Such an article would of course be interesting, but however the legal battle is fought, the focus of the criticism from the USCCB and elsewhere is that the Obama administration if trampling on the First Amendment. If opponents of the contraceptive mandate have to rely on RFRA instead of the constitution, most of the anti-Obama rhetoric is hot air.

The more I think about this mandate, the more convinced I become that if the administration really wanted an accommodation, we would be discussing broadening the exempted institutions as opposed to forcing a different third party to supply the 'benefits'. Btw, the better way to think about risk sharing in auto or home insurance where you pay a premium and hopefully, never have to make a claim. Thats real insurance. Paying for aspirin or contraceptives is more like a lay-a-way plan than insurance.

MikeD: You make it sound as though the editors of COMMONWEAL actively solicited the article from Becker. You say, "I was surprised commonweal [sic] could not get someone who is more of an expert on this topic to write a more comprehensive article . . . ."I suspect that Becker took the initiative to write and submit his essay for consideration for publication in COMMONWEAL.I wonder if Grant Gallicho might be able to clarify this issue for us.

David, RFRA is just extra protection. The mandate is unconstitutional under the first amendment standing on its own because Smith does not apply to a law that is not generally applicable. Read the cases I cited, it really isn't that hard to follow.

j p farry: If the Catholic bishops respond to the draft of the rules, as I expect they will, they might publish their response at the USCCB website. However, I also expect the Catholic bishops to figure out other public ways to respond to keep up their grandstanding in public about the contraception mandate.

Ann Olivier et al.It is not a stretch to observe that the U.S. bishops have had an antagonistic relationship with this president from the beginning of his presidency (and perhaps, even before he was elected). The issue took off very early when he was invited to speak at the 2009 commencement and given an honorary degree at Notre Dame. Eighty-three bishops wrote letters of protest to Fr. Jenkins. They were all posted on the Cardinal Newman Society website and some come off to me as rather nasty. Then there was the uproar over the Affordable Health Care Act and now the contraceptive mandate. More significant for me is the establishment of the ad hoc committee for religious liberty. Eight of the 10 bishops on the committee wrote letters of protest to Notre Dame. Two of the 10 consultants have held positions in Republican administrations, viz., Carl Anderson and Mary Ann Glendon, who is now doing radio promos for Romney. My take is that the U.S. bishops are driven by forces (vindictive and political) that may be much more significant than constitutional and legal matters.

Bender brings up an interesting point. Most insurance is seldom if ever used. It's strictly for emergencies, disasters - just in case - peace of mind. Health insurance has come to be something that's used all the time - every time we have contact with a medical professional or need prescription medication. It allows us to obtain services, materials, and medicines that we could not afford without it. It makes us all beggars. And the free-contraceptives thing is hardly insurance at all - it's really just a freebie given away by the government - sort of like the free toothbrush you get with your dentist visit.

Whether or not contraception is healthcare, what the purpose of insurance is and whether or not the bishops only care about politics are distractions from the subject of this article, because these issues have little or nothing to do with whether the mandate itself is constitutional.

MikeD,Isn't it the case, however, that in New York and California, those challenging the constitutionality of state contraceptive mandates lost in state supreme courts? The courts found the state mandates constitutional applying Employment Division v Smith, and the Supreme Court declined to hear appeals. One other point. The regulation we are attempting to discuss hasn't been written yet. As j p farry points out above, the process of collecting comments on the proposed new regulation has just begun.

Helen --I think you're right. It bodes ill for the future of the Church in the U. S. I can't imagine Pope John XXIII behaving the way the American bishops have been acting recently. Given the recent ascendancy of C. Dolan, I fear he has made the difference. He's not the sweetie-pie his persona projects.

"It makes us all beggars."No, David S., it definitely does not. Insurance is not free, and it purchases pace of mind if nothing else. It makes us sharers of bad luck, distributing the costs over the group. Kind of like the grace of God -- everyone gets what he/she needs regardless of whether or not the amounts are equal. A very Christian concept, I'd say.

Ann, helping people pay for what they can't afford otherwise is nice, but is it "insurance", properly speaking? Seems to me that it's basically the insurance industry - and, more recently, in a big way, the government - enabling the health-care industry to grow by leaps and bounds in a way that it could not have otherwise. If we had to pay for our own CAT scans and colonoscopies and heart transplants, the health-care industry would shrink dramatically.Something funny's happened in the insurance industry and in government entitlement programs in the past several decades. Together, they've made health care an enormously expensive proposition for everybody - something that was definitely not the case before. We can blame it, instead, on "progress", but that's really not the case. We could have a lot of progress without all the super-expensive machines and treatments that we've come to expect. This could have been prevented - or, at least, much better managed. Interesting.MikeD - I know this topic is a distraction, a side trip off the main topic of the propriety and legality of a specific governmental reach for more control over churches, but I don't think we're officially forbidden to think outside the blog box. If that's wrong, I doubt Grant will fail to upbraid me.

David Nickol 03/18/2012 - 2:25 pmIf we had to pay for our own CAT scans and colonoscopies and heart transplants, the health-care industry would shrink dramatically.David Smith,And that would be a good thing?

Maybe, David, yes. Think about it. Everything that's medically possible is not available to everyone now. In effect, medical care is already rationed. It has to be. Follow that up and see where it goes.

Follow that up and see where it goes.David Smith,The answers here are not obvious to me. It is arguably the case, for example, that although colonoscopies are rather expensive for an individual, and few would want to pay for them out of pocket, nevertheless they are cost effective in the overall scheme of health care for both society and insurance companies. If colonoscopies catch enough cases of easily treatable, precancerous growths, they relieve the health care industry of treating very expensive cases of colon cancer in the future, and consequently pay for themselves. It is cost efficient to encourage people to take advantage of preventive medicine (colonoscopy, mammography, vaccinations, smoking cessation programs, and so on) even if it does require an investment up front and even if it requires the government or the healthcare system to pay for some things an individual wouldn't pay for on his or her own. It makes little sense to argue health care insurance should be modified to be more like car insurance. People aren't cars. Cars have an easily determined monetary value and depreciate as time passes. People do not. The older a car gets, the less it makes sense to spend money repairing it. This is not the way it works with people. We don't say, "Grandma is getting old. It doesn't make any sense to keep investing money in her. Let's get a new grandmother." This is not, of course, to say that there doesn't come a time when treatment that is expensive as well as burdensome should be reasonably discontinued.

I think the old saying has direct relevance here:An ounce of prevention is worth a pound of cure." -- everyone gets what he/she needs regardless of whether or not the amounts are equal. A very Christian concept, Id say." Acts 11:29 to be precise. And maybe Marx wasn't so far off, no matter how abhorrent "socialism" is to rugged individualists who are perfectly happy to take the government benefits that THEY want (mortgage interest tax deductions; deductibility of charitable constributions; etc. - middle class socialism) but not make available the ones they don't want to pay for.

If I may be so bold as to pipe in from north of the border, the Becker article was very interesting as to how this issue might be resolved if taken to the Supreme Court.Of more interest to me is the sheer hypocrisy of the Bishop's position. If the bishops position is that they do not want to cooperate in a sinful act them why is such a situation not then transnational? In Ontario, we have huge publicly funded Catholic schools. They are much like your Catholic hospitals of which we too have a few. Catholic school boards hire Catholic teachers but other staff can be any denomination or no denomination. They also carry and share the cost of supplementary drug plans which cover contraceptives. Here the bishops have never raised the issue in any way shape or form. Obviously it can't be okay in Canada if it can't be okay in the USA. That is why I think the American bishops are being hypocrites. From my perspective, this is a silly situation...just so quintessentially American...resulting in volumes and volumes of words. The bishops are blowing this all out of proportion, I suspect for political points of some sort.

@John Borst (3/18, 5:04 pm) Many thanks for your perspective from north of the border. I would welcome more perspectives from other countries---whether from citizens, current residents or former residents---on this issue.It's surprising to me that, for a group of men who've worked in a global organization their entire professional lives, so many US bishops seem ready to take a stance on this issue that (seemingly) ignores the lived experience of the Church and their brother bishops in other countries.

As John Borst notes there are political reasons. It is loud and clear that the American bishops have decided to be partisan and to interfere with a presidential election. To say they are misguided would be too charitable. Tell it like it is. They are corrupt.

John and Luke, this is not the rest of the world. What happens here happens in a social and legal framework and context uniquely American. Some compromises that might be necessary in other places ought not to be necessary here.Also, although it's always interesting and educational to learn how similar dilemmas are handled in other cultures, it's important to remember that they are never the same dilemmas because the social and legal contexts are different.

Ann Olivier 03/18/2012 - 9:32 pm SUBSCRIBERPeople arent cars. Cars have an easily determined monetary value and depreciate as time passes. People do not.Oh, yes, we do! :-( And that does bring us to rationing . . .

Indeed, Ann. I don't know the numbers, but a high proportion of health-care expenditure here today is for old-age care. In the cold calculus of the bean counters - whose priorities push most social "progress" in secular societies - that has to change. The calculus would be very different in societies motivated primarily by Christian morality, but there's less and less of that around. Which is one very good reason, I'd think, for even forward-thinking Catholic progressives to view the bishops' efforts sympathetically.

Thomas the Catholic bishops of Canada are also Conservative Catholics. Here they have themselves all in a tizzy over the establishment of Gay Straight Alliances in our Catholic schools.The Government of Ontario has brought in a new piece of "anti-bullying" legislation and one of the grounds in sexual orientation. The legislation grants students the right to form clubs to promote safer environments for students who are bullied, hence the legislation supports the formation of Gay-Straight Alliances (you know an import from America of course) Anyway last year an outed young female student from St. Joseph's High School in Mississauga (west of Toronto) attempted to form a GSA and was told by the principal she could form a club but it could not be called a GSA nor could they use the term "Gay" in any posters or literature or the Gay flag symbol (although that flag is front and centre in the foyer of St. Michael's Hospital in Downtown Toronto - oh but that is right next door to the heart of the Gay village which of course is a term Bishops dare not utter.) Now with the bishops guidance the Catholic School Trustees' Association has issued a statement that schools may form Diversity clubs - Quite frankly I hope some parent takes the bishops to the supreme court on this because I think they will lose this case. They will argue that the term gay violates our faith belief about homosexuality and by its a very nature promotes the "homosexual" lifestyle...a bigoted over generalization if there ever was one. In Canadian jurisprudence this is called a "denominational right" and works in the same way as the American bishops are claiming the government is not recognizing their right to an insurance plan free of contraceptive drugs.So David Smith you are part of the rest of my world and although the terminology may be slightly different the principles involved are very similar. It is the issues that those conservative bishops wish to address which are different. Also although many Americans wish to believe in their exceptionalism, judges at the highest level are more and more aware of and review rulings in other Countries for guidance prior to making decisions in their own especially in new and novel field like both of these cases. Even American Supreme court judges have been criticized by Americans for this practice.

@David Smith (3/18, 9:38 pm) We agree, I think, that there is something unique about what happens in the US---just as there is something unique about what happens in Canada, Poland, Nigeria, the Philippines, Brazil, etc. What (still) surprises me in instances like this current issue is that the US Catholic bishops have the rich resources available to them of the experience of dozens of national Churches (including Canada) in dealing with universal health care---and yet appear to ignore or discard that experience. And to do so without explanation, even to their own people.